November 1, 2010
By Eden James
Chris Geidner has the details at Metro Weekly:
With one judge dissenting, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a stay of the injunction of the military’s “Don’t Ask, Don’t Tell” policy issued by U.S. District Judge Virginia Phillips, pending the outcome of the government’s appeal of Log Cabin Republicans v. United States.
“In addition to the fact that this case raises ‘serious legal questions,’” the court wrote, “there are three reasons that persuade us to grant a stay pending appeal.”
The reasons included that “Acts of Congress are presumptively constitutional,” that “‘judicial deference . . . is at its apogee’ when Congress legislates under its authority to raise and support armies” and that “the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal.”
Read the rest to see what dissenting Judge William Fletcher wrote.
According to Geidner, it appears the briefing will not be complete until March 2011. An oral argument likely will be scheduled thereafter.
Scribd doc from the always-on-top-of-it Kathleen:
Dan Woods, White & Case:
“The court’s ruling is a disappointment not only to us, but also to all homosexual servicemembers who bravely put themselves in harm’s way so that we can all enjoy the constitutional rights and freedoms that they themselves are being denied,” said Dan Woods, White & Case partner who is representing Log Cabin Republicans. “The decision only slows the day when military service will be available to all Americans, regardless of sexual orientation, who want nothing more than to serve their country honorably and patriotically. We will continue to fight on for the constitutional rights of these Americans and look forward to a favorable decision on the merits of the appeal. Meanwhile, we will discuss the court’s order with our client to determine whether we will ask for a review of the order by the US Supreme Court.”
R. Clarke Cooper, Executive Director, Log Cabin Republicans:
“Log Cabin Republicans is disappointed that ‘Don’t Ask, Don’t Tell’ will continue to burden our armed forces, undermine national security and limit the freedom of our men and women in uniform,” said R. Clarke Cooper, Executive Director of Log Cabin Republicans. “Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of servicemembers’ constitutional rights. In the meantime, we urge President Obama to use his statutory stop-loss power to halt discharges under this discriminatory and wasteful policy. The president claims to want to see ‘Don’t Ask, Don’t Tell’ ended. It is time that he stop talking and start working to make a real difference for gay and lesbian Americans by pushing for repeal when Congress returns.”
HRC, from Joe Solmonese:
“Every day that ‘Don’t Ask, Don’t Tell’ is in force, Americans are losing out on the best and brightest service members defending our country. For the good of our national security, the endless legal wrangling and political posturing has to stop. This is the year for the President to lead and for Congress to clean up the mess it made when it enacted this discriminatory and unconstitutional law nearly two decades ago.”
UPDATE: Karen Ocamb has a few more statements:
Servicemembers Legal Defense Network Executive Director Aubrey Sarvis:
“Today’s decision is a major disappointment, and it underscores the urgent need for the Senate to act this month in the lame duck session to end this confusion and bring about the finality that is needed. We continue to warn service members that it is unsafe to come out as long as this law remains on the books.”
Lambda Legal wrote an amicus brief in the case. Staff Attorney Peter Renn said:
“Today’s ruling means additional months or even years of needless suffering by lesbian, gay and bisexual service members, who must continue to live in fear of discovery until the appeals process is complete – or until Congress or the President steps up to the plate. But it’s important to remember what today’s ruling was not: a consideration of the merits of the case. That remains for another day.
Each day that ‘Don’t Ask, Don’t Tell’ remains in effect, it destroys lives and careers, undermines national security, and forces the discharge of the very personnel our military needs in a time of war. The pressure is now on Congress to repeal this fundamentally un-American law – and on the President, who can issue a stop-loss order to put an immediate end to discharges under ‘Don’t Ask, Don’t Tell.’”
UPDATE: Alexander Nicholson, Executive Director of Servicemembers United:
“It is really unfortunate that the government has tricked the Ninth Circuit into believing that ‘enormous consequences,’ ‘immediate harm,’ and ‘irreparable injury’ will result from a continuation of the injunction,” said Alexander Nicholson, Executive Director of Servicemembers United and the only named veteran plaintiff in the case. “By the government’s own admission elsewhere, none of these predicted consequences or injuries have come to pass while the law has been enjoined, and the Defense Department has even voluntarily created a de facto moratorium on discharges by further increasing the level of discharge authority. It is concerning that the government can so blatantly pull one over on an appeals court, and it is equally frustrating that such a distinguished court would allow itself to be fooled so obviously and so publicly in the name of ‘deference.’ Abdication is more like it.”
“In light of this stalling of justice, the very narrow legislative path remains the only way by which the President, administration officials, and the congressional leadership can keep their promise to end “Don’t Ask, Don’t Tell” this year. In order for there to be any chance for legislative success, Senate Majority Leader Harry Reid absolutely must bring the National Defense Authorization Act back up on the Senate floor before the Senate recesses for Thanksgiving.”
In a video released online late last week, Servicemembers United’s Executive Director explained SU’s take on the very narrow path available to achieve a legislative victory on “Don’t Ask, Don’t Tell” by the end of the year: